Readers unfamiliar with the workings of the UK Home Office may be forgiven for thinking “…but surely…. cruelty to children is always excessive?”. Whilst the U.N Convention on the Rights of the Child is quite clear on its approach to the issue of child cruelty, in the parallel world of UK immigration law it turns out that the degree of cruelty a child can be exposed to varies depending on how unpleasant their foreign national parents are.
In the recently promulgated case of KMO (section 117 – unduly harsh) Nigeria [2015] UKUT 00543 the Upper Tribunal grapples with the interpretation of the term “unduly harsh” – the deportation test introduced into primary legislation by the Immigration Act 2014. In doing so it essentially explores the concept of at what point cruelty to children can be described as excessive.
The Law
The domestic law on the deportation of foreign national offenders has changed rapidly in recent years. Under Article 8 of the ECHR, decisions to deport foreign nationals need to be proportionate when considering their right to family life and that of their family members. A key aspect of this is that decision makers must take into account the best interests of any children involved as a primary consideration. [1]
In practice when judges are faced by appeals from appellants facing deportation, they are tasked with balancing the rights of a foreign national and their family against the public interest in the deportation of someone who has committed a criminal offence, in order to come to a decision that is proportionate and necessary in a democratic society. The government has since 2012 attempted to direct the judiciary in the way in which it should conduct this balancing exercise. It has done this first by introducing immigration rules which attempted to codify the assessment of Article 8 into discrete categories of exceptions to deportation [2], and then when this approach was less than successful by introducing “Public Interest Considerations” into primary legislation to which all judges must have regard [3].
An aspect of these considerations is a new test to be met by individuals defined as foreign criminals [4] involved in Article 8 deportation appeals. The Act creates a number of very tightly defined exceptions to when deportation should be carried out, one of which is:
Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child [5], and the effect of C’s deportation on the partner or child would be unduly harsh.
Until recently the concept of undue harshness was awaiting interpretation, though the Home Office in its July 2014 guidance [6] was quick to explain that:
2.5.2 When considering the public interest statements, words must be given their ordinary meanings. The Oxford English Dictionary defines “unduly” as “excessively” and “harsh” as “severe, cruel”.
For deportation to be disproportionate the unduly harsh/excessively cruel consequences must be experienced by the child both if they were to removed with the parent to their home country, and if they were to remain in the UK without their deported parent.
As the guidance informs us:
The impact of deportation on a partner or child can be harsh, even very harsh, without being unduly harsh, depending on the extent of the public interest in deportation and of the family life affected [7].
Adopting this guidance therefore leads us to the question of at what point cruelty to a child in the interests of immigration control becomes excessive. It is to this question that the Upper Tribunal apply themselves in the case of KMO.
The Case
The appellant in the case was a national of Nigeria who had been resident in the UK for 28 years without leave to remain. He had been convicted of “conspiracy to dishonestly make false representations” and had received a 20 month prison sentence for what was described by the sentencing judge as serious antisocial offences. He had a wife who had indefinite leave to remain and 5 children, 4 of whom were British. He had arrived in the UK in 1986 at the age of 17 and lived with his wife since 2003. We are not told anything about the nature of the family ties back in Nigeria though it appears that the children had not visited. In his appeal to the first tier tribunal the immigration judge allowed his appeal against deportation on the basis that his removal would be a disproportionate interference with his family’s right to family life under Article 8 of the ECHR. The judge found that the appellant had a subsisting relationship with his wife and all 5 children, that it would be unduly harsh for the eldest child to return to Nigeria, that it would not be in the best interests of the other children to be separated from their father but that it would not be unduly harsh for them to return to Nigeria with him. He found that the relationship between father and children could not be maintained by means of communication from abroad. The appellant was responsible for childcare at home whilst his wife was in employment, but would have to leave her employment if her husband was deported. The first tier judge decided that it would not be in the public interest to deport the appellant and take away the family’s financial stability. This was challenged on appeal to the Upper Tribunal on the grounds that the judge had erred in his approach to the new public interest considerations.
The Judgement
The term unduly harsh had previously been considered in the earlier case of MAB (para 399; “unduly harsh”) USA [2015] UKUT 00435 (IAC). In that case the Upper Tribunal in its headnote avoided the term “cruelty” and instead equated the term “harsh” with consequences that are “severe” or “bleak”. Whether exposing a child to “excessive bleakness” is of a different degree of suffering to “excessive cruelty” was not commented on in the judgment. However, they were clear that the consequences would need to be “more than “uncomfortable, inconvenient, undesirable, unwelcome or merely difficult and challenging” [8] for the partners and children affected.
In that case the court held that the concept of undue harshness was a fixed concept and not to be interpreted with reference to the severity of the crime.
The Upper Tribunal in KMO declines to follow this approach. In contrast, what is unduly harsh will vary depending on the nature of the crime committed. In doing so they adopt fully the Home Office position set out in their guidance, reasoning that the guidance gives a good idea of what the legislation intended to achieve. Therefore there is a sliding scale. Put simply, the more unpleasant the crimes of the parent, the greater the level of undue harshness (or to take the Home Office terminology – excessive cruelty) that can be inflicted on their children before a decision is disproportionate and breaches Article 8.
Perhaps wisely, the tribunal again in this case avoids the term “cruelty” and opts for the terms “severe” and “bleak” as in MAB.
Needless to say the Upper Tribunal overturns the decision of the first tier tribunal. It refuses to admit a late expert report concerning the impact of deportation on the lives of the children, and finds that deportation would not be unduly harsh in these circumstances. The fact that there was no evidence that the appellant represented a risk of committing further offences was of little relevance [9]. The finding that it would not be unduly harsh for the youngest children to relocate to Nigeria was preserved though the judge noted that in reality they were unlikely to do so. Instead the family would be separated and the children would lose their father. The judge accepted that deportation may well lead to a single mother of 5 children, leaving her employment in order to care for her children, placing the children in a situation of economic disadvantage. He also accepted that the children would find their father’s absence “distressing and difficult to accept”, but such an experience could not be classified as “severe” or “bleak”. Interestingly the judge considers that had he followed the former approach outlined in MAB the appeal would have succeeded. It is therefore likely that this issue and these conflicting authorities will need to be resolved by the court of appeal.
Comment
It is noticeable that this is a judgement bereft of any reference to Strasbourg caselaw and which gave very little weight to the best interests of the children as a primary consideration. This may be because in the minds of some the UK is already at the door of Strasbourg, and so it hardly matters now if we are interpreting Article 8 in a way that is consistent with the ECtHR jurisprudence. But what is noticeable is the lack of a detailed consideration of the consequences on the lives of the children who will now be brought up in a single parent family, as one would expect if a family court were making a decision on contact between children and parents.
Neither is there any mention of the case of Sanade and others [10] (British children – Zambrano – Dereci) [2012] UKUT 00048 (IAC, which although decided before the Immigration Act 2014 reaffirmed the principle that in cases involving UK citizens, the rights of EU citizenship are such that “it is not possible to require the family as a unit to relocate outside of the European Union or for the Secretary of State to submit that it would be reasonable for them to do so” [11]. Although the Home Office in its current policy guidance is now arguing against this position, the tribunal in this case does not confront this argument. Instead it treats the possibility of the relocation of UK citizen children to country they have not lived in as unexceptional, and certainly not as unduly harsh.
In KMO the Upper Tribunal has shown itself willing to adopt fully the Home Office position outlined in their policy guidance, making it increasingly difficult for appellants to succeed in deportation appeals. In combination with the introduction of section 94B, which prevents individuals from appealing until after their deportation unless they would face serious and irreversible harm, it would appear that at present the government has been largely successful in its attempts to curtail the ability of individuals to rely on their rights under Article 8 of the ECHR.
But let us be clear about what this means. Deportation is not the natural consequence of an individual committing a crime. It is a conscious administrative decision backed up by the power of the law. It is a state decision, often involving the use of force to effect it, that has far reaching consequences for many more people than the individual facing deportation.
The state of the law on deportation is now such that the degree of seriousness of an adult’s crime is considered relevant to the degree of suffering that can be inflicted upon their children. Whilst it may be argued that children are bound to lose out on contact with both parents when a parent is imprisoned for a criminal offence, there is a significant difference between a determinate sentence, after which a parent may successfully rehabilitate and play a vital role in the child’s life, and the potentially irrevocable separation caused by deportation.
Dembour (2015) in her recent critical study of the European Court of Human Rights seeks to interrogate the history of judgements relating to the rights of migrants in an attempt to understand the conditions which make a particular pronouncement “thinkable”, and yet lead to other directions of thought being submerged. It is now becoming established wisdom that the British child of a long term resident foreign national may suffer harsh treatment as a consequence of mistakes made by their parents, so long as that treatment does not cross a certain legal threshold. Is has now become “thinkable” that we are considering at what point cruelty to a child becomes excessive.
The deemed public interest in deportation of any foreign national offender now appears such as to displace other aspects of what we could call a wider public interest such as the rights of children or other socio-economic concerns. It remains to be seen how the higher courts will approach this question.
Richard Warren
Kent Law Clinic
[1] See ZH Tanzania interpreting section 55 of the UK Borders Act 2009 which itself concerns Article 3 of the UN Convention on the Rights of the Child(CRC)
[2] July 2012 Immigration rule changes.
[3] Section 19 of the Immigration Act 2014 which inserts section 117C into the 2002 Act
[4] Defined in the Act as someone who is not British and who has been sentenced to a period of imprisonment of at least 12 months, has committed an offence that has caused serious harm, or who is described as a “persistent offender”.
[5] Defined as a UK citizen child or a child who has lived in the UK for a continuous period of 7 years
[6] Home Office: Immigration directorate instructions Chapter 13: criminality guidance in Article 8 ECHR cases, July 2014
[7] Above, para 2.53
[8] MAB (para 399; “unduly harsh”) USA [2015] UKUT 00435 (IAC), para 2
[9] Following established caselaw such as N (Kenya) v SSHD [2004] EWCA